Alleged Mishandling of DWI Evidence by New Jersey Law Enforcement Official Could Affect Thousands of Cases

In order to convict someone of driving while intoxicated (DWI), New Jersey prosecutors must prove beyond a reasonable doubt that the person was impaired by alcohol or drugs. State law allows police to collect breath samples to test blood alcohol concentration (BAC) in suspected DWI cases. Police in New Jersey typically use a device known as an Alcotest, which analyzes breath samples provided by blowing into a tube. These devices require careful maintenance and calibration in order to produce reliable measurements. In October 2017, prosecutors in several New Jersey counties notified thousands of individuals with DWI convictions or pending charges that police may have mishandled BAC evidence in their cases. A specially appointed judge will determine whether any New Jersey DWI cases should be reviewed in light of this alleged misconduct.

New Jersey law creates an incentive for prosecutors to rely on BAC evidence. They can prove that a defendant was legally impaired through circumstantial evidence, such as an arresting officer’s testimony about a DWI defendant’s behavior and appearance. New Jersey’s DWI statute creates a presumption of impairment, however, when a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher at the time of, or within several hours of, their arrest. Penalties are also higher for first-time DWI convictions if the defendant’s BAC was 0.10 percent or greater.

The Alcotest device purports to measure the concentration of alcohol in a person’s blood by performing tests on samples of that person’s breath. This requires a certain amount of extrapolation using algorithms in the device’s programming. The device uses infrared technology and the process of electrochemical oxidation to test breath samples. This latter process is particularly sensitive to environmental factors like temperature and potential contaminants. The New Jersey Supreme Court’s 2008 decision in State v. Chun, in which we represented several appellants, established guidelines for the maintenance and calibration of these devices, as well as documentation to indicate when an Alcotest device was most recently serviced.

More than twenty thousand DWI defendants in five New Jersey counties—Middlesex, Monmouth, Ocean, Somerset, and Union—received letters stating that their cases may have been compromised by alleged tampering with BAC evidence by a former sergeant with the State Police. The former sergeant, who was responsible for calibrating several Alcotest devices, allegedly failed to do so in accordance with Chun. He is further accused of falsely documenting maintenance that was not performed. He was indicted in December 2016 with tampering with and falsifying public records.

The New Jersey Supreme Court appointed a retired appellate judge as a special master to hold a hearing, currently scheduled for late November 2017, to determine whether the former sergeant’s alleged conduct undermined the scientific accuracy of the BAC evidence. The judge’s decision will help determine whether any of the individuals who received letters have claims for relief based on faulty evidence. A federal judge recently dismissed a class action, Ortiz v. N.J. State Police, et al., alleging that the mishandling of BAC evidence violated DWI defendants’ civil rights. The dismissal was without prejudice, meaning that the lawsuit could be revived if the special master finds that the evidence was compromised.

If you are facing alleged DWI charges in a New Jersey municipal court, DWI lawyer Evan Levow can advocate for your rights and guide you through the court process. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to see how our experienced and knowledgeable team can assist you.

More Blog Posts:

Accuracy of Alcotest Devices in New Jersey DWI Cases Questioned in Lawsuit, New Jersey DWI Attorney Blog, December 14, 2016

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence, New Jersey DWI Attorney Blog, August 22, 2016

Defendant in DWI Case Has Burden of Proving Inability to Provide Breath Sample, According to New Jersey Court, New Jersey DWI Attorney Blog, August 6, 2016